Birth injury cases deal with the youngest of victims, who have much more to lose than adults. As such, their medical malpractice lawsuits have among the highest compensation figures of all personal injury tort cases.
In many cases, the average birth injury settlement will fetch upwards of 30% more than other types of medical malpractice claims. If you or your child has suffered a birth injury in New York and need compensation for your losses, an experienced NY birth injury attorney may be able to help.
What Is a Birth Injury Claim for Compensation?
A birth injury claim for compensation is a way for the parents of a child injured at birth to get justice through compensation for their child. Although compensation does not make the past disappear, it does help parents raise an injured child and may provide for the child's future as an adult.
In a claim for compensation, the claimant alleges and must prove that an action or a failure to act was the ultimate cause of the baby's birth injury. They must also prove that this action or failure to act was negligent, which means that it fell below a required standard of care.
Additionally, the claim will need to show that the birth injury caused losses compensable by damages, which are the monetary totals of the various losses you have suffered, both economic and non-economic.
Am I Eligible to File a Claim for My Child’s Birth Injury?
If your child suffered a birth injury caused by a healthcare provider’s negligence, you may be eligible to file a birth injury claim. Negligence is more than a mere mistake. Negligence is an error or action that no reasonable healthcare provider would ever make.
To truly know whether you have a valid birth injury claim, you must speak with a seasoned birth injury attorney. They can review the facts and discuss your options with you for filing a claim.
Why File a Birth Injury Lawsuit?
Birth injury lawsuits are perhaps the only recourse grieving parents and their injured children have after a birth injury caused by negligence. As mentioned, medical malpractice cases are not based on a simple mistake. So it's important to file one if the actions that caused your child's injury were completely out of bounds.
You should also file a birth injury lawsuit because of the difficulties your child has had and will have in the future. Birth injuries can forever alter the course of your child's life and financially and emotionally cripple entire families.
The money you receive from a lawsuit can ease much of the financial and emotional pain and suffering so common in every birth injury case.
Common Birth Injuries That Can Be Compensated
Both child and mother may experience an array of different birth injuries due to a healthcare provider's negligence.
Birth Injuries to Mother
Birth injuries to mothers include:
- Suture injuries
- Perineal tears
- Retained swabs and pads
- Organ damages
Mothers may also experience injuries caused by anesthesia errors. And in the worst of cases, the mother may pass away during labor and delivery from acts of negligence.
Birth Injuries to Child
Children may suffer a mix of birth injuries, many of which lead to permanent conditions. Some of the more common injuries include:
- Brain damage
- Cerebral palsy
- Erb's palsy
- Bone fractures of the skull, shoulder, arm, leg, or collarbone
Children can also face fatal consequences when negligence occurs during delivery.
Understanding the Types of Compensation Available for Birth Injury Claims in New York
Your medical malpractice claim will include a list of damages that you are seeking. In New York, there are two principal types of damages and a less common third. They are economic, non-economic, and punitive damages.
Economic damages are available to birth injury victims and their families and include compensation for various economic harms directly attributable to the birth injury. Such harms can involve financial losses due to:
- Medical expenses for treatment, hospital stays, medication, and therapy.
- Past, present, and future lost wages.
- Acquiring medical equipment and devices.
A claimant may also pursue compensation to cover their outlays for funeral and burial services.
Birth injury victims and their families may also pursue non-economic damages, which are not financial losses, but losses that affect the emotions and the psyche. These losses can include:
- Pain and suffering
- Loss of consortium
- Loss of enjoyment of life
- Emotional distress
Essentially, these damages serve to address the intangibles that impact a victim's life and their family's.
Punitive damages in birth injury cases are not all that common. They are paid out when a victim's New York birth injury attorney can prove that the injuring party caused the injuries in question through actions that were willfully or wantonly negligent.
In other words, the party who caused the birth injury must have purposefully been behaving in a manner that caused serious risks for others. If you are awarded punitive damages, they will be paid in addition to the economic and non-economic damages you receive.
Unlike many other states, New York does not have damages caps for either economic, non-economic, or punitive damages. This means that victims and their families stand to receive substantial compensation awards for their losses.
How to Calculate Damages for Birth Injury Cases in New York?
Calculating non-economic damages is sometimes a contentious process. With non-economic damages, the problem arises from the fact that they have no intrinsic economic value. So to arrive at an appropriate compensation figure, one of two formulas is used.
Using the multiplier method, the parties take the total amount of economic damages suffered by the victim and multiply that number by a multiplier of between 1 and 5. Only the most severe injuries receive a five.
For example, a birth injury claim that produces $100,000 in economic damages (medical bills, lost wages) and is assigned a multiplier of 4 will see the victim receive $400,000 in non-economic damages.
Per Diem Method
Using the per diem method, the parties negotiate a flat daily rate to pay the victim for a certain period of time. In many cases, the rate is based on the victim's normal daily wage. However, with children, this is not possible, so other methods and factors may be used or taken into consideration.
Seeking Compensation for Birth Injury in NY: Steps to Take
When you work with Jacob D. Fuchsberg Law Firm, we handle your medical negligence claim on your behalf. The steps we take will generally include:
- Lawyer Consultation: We will review your case and collect basic information.
- Case Investigation: We will thoroughly investigate the incident and build your case using evidence and medical experts.
- File Claim: We will file your claim for compensation when the case is ready
- Negotiate for Maximum Compensation: We will aggressively pursue the highest compensation payout for your claim.
If we can't come to a settlement, we will sue the insurance company in court to get the compensation you deserve.
Is There a Time Limit on Making a Birth Injury Claim?
Yes. The statute of limitation for medical malpractice cases is 30 months from the date of the injury if the victim is an adult. When the victim is a child in medical malpractice cases, the parents have up to ten years after the incident to seek compensation on behalf of the child.
On the other hand, if the child seeks compensation, they have 30 months after their 18th birthday.
How Much Does It Cost to Make a Birth Injury Claim?
Like most personal injury attorneys, we typically charge on a contingency fee basis. This means you only owe us if we win your case, and we calculate our final fee based on the amount of money you receive at the end.
For clients with a child who has suffered a birth injury to the brain, legal aid support may be available to cover these costs.
Contact Our Skilled New York Birth Injury Attorneys for Legal Guidance!
Compensation is available to help you and your child deal with the losses and pain stemming from a birth injury caused by negligence. At Jacob Fuchsberg Law Firm, we fight hard to maximize the birth injury lawsuit settlements that we recover for our clients, so their futures will be just a little bit brighter.
If you need a birth injury lawyer to fight for you, contact us at 212-869-3500 for a free consultation today.